S (A Child : Hague Convention 1980 : Return To Third State)

An order requiring a child and the parent caring for that child to move to a third state, without an existing agreement or arrangement to live there, may amount to a relocation decision. Such a welfare determination requires a welfare assessment. Applying only the structure of the Hague Child Abduction Convention 1980 is insufficient.

Protective measures relied upon to address an identified grave risk require careful scrutiny of their efficacy. The greater the reliance placed on them, the greater the scrutiny required. Relevant matters include the enforceability of undertakings and the receiving court’s jurisdiction and powers. Protective measures extend beyond undertakings offered by the applicant. The general power to order return to a third state was left undecided.

The mother and father were Hungarian nationals whose four-year-old child had been habitually resident with them in Germany. During a holiday in Hungary, the mother took the child to England. The father subsequently seriously assaulted the mother in the child’s presence and received a suspended sentence and a restraining order. He later moved to Hungary.

The father applied under the Hague Child Abduction Convention 1980, initially seeking return to Germany and subsequently seeking return to Hungary. Cobb J found that the mother had established a grave risk unless adequate protective measures were provided. He accepted fourteen undertakings from the father and ordered return to Hungary: [2019] EWHC 56 (Fam).

The mother appealed against the appropriateness of the third-state order and the assessment of the undertakings. Her additional jurisdictional arguments were raised shortly before the appeal hearing. The central issues were whether the order could be justified without a welfare assessment and whether the undertakings’ efficacy had been adequately established.

The appeal was allowed unanimously. The order requiring the child’s return to Hungary was set aside and the father’s application under the Hague Child Abduction Convention 1980 was dismissed.

1. The order was, in substance, a relocation decision. Hungary was neither the child’s state of habitual residence before removal nor the new home of the custodial parent contemplated in In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening). It required the mother and child to move somewhere they had not been living, without an existing agreement or arrangement to do so. A welfare determination required a welfare assessment with an appropriate evidential focus. The judge had instead confined his approach to the Convention’s structure (paras 57–59, 64).

2. In re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) concerned materially different circumstances. Return had been ordered under the inherent jurisdiction following substantive custody proceedings in Texas. Conflicting orders required the relationship between the jurisdictions to be restored, and significant harm on return was not anticipated (para 58).

3. The reasoning about protective undertakings was also insufficient. Protective measures addressing grave risk require careful assessment of their efficacy, with greater scrutiny where greater reliance is placed upon them. Undertakings require caution, particularly where their enforceability abroad is uncertain. The judge had not explained whether protection depended on the father’s reliability or enforceability in Hungary. The Hungarian court’s jurisdiction and financial powers were unclear. Translated documents also undermined the understanding that child welfare proceedings had already been initiated there (paras 54–56, 60–64).

4. Protective measures have a broad meaning and extend beyond measures an applicant can personally offer. Relevant case-management guidance should be understood accordingly. The Hague Child Protection Convention 1996 also has limits: Article 4 excludes maintenance obligations. Recitals describing undertakings as measures could not bring excluded obligations within that Convention. The court left unresolved its applicability to intra-EU proceedings and the general scope of Article 11 (paras 50–53, 61).

5. The general power under the 1980 Convention to order return to a third state was left undecided. No alternative Convention order was appropriate, and remittal served no proper purpose. Any application under the inherent jurisdiction could be made separately (paras 8–9, 65–66).

• Court of Appeal (Civil Division): [2019] EWCA Civ 352 . Allowed the mother’s appeal unanimously, set aside the return order and dismissed the father’s application under the Hague Child Abduction Convention 1980.
• High Court, Family Division: Cobb J, [2019] EWHC 56 (Fam) . Delivered judgment on 20 December 2018 and adjourned for detailed undertakings and supporting evidence. On 15 January 2019, accepted fourteen undertakings and ordered the child’s return to Hungary.